P L D 1952 Lahore 364 (PLP)

M. R. KAYANI, J.‑The plaintiffs, claiming that they were owners of copyright in two poems of Muhammad Buta entitled "Mirza Sahiban" and "Wafatnama", alleged an infringement of the right by defendant No. 1, Hafiz Mahmud Shaukat, and prayed for :‑ (a) an injunction restraining the defendant from publishing the aforesaid books in future. (b) appointment of a receiver who should take custody of books already published by the defendant, and (c) recovery of the price of books which have been published but have since been sold out. They obtained a decree only in respect of the book "Mirza Sahiban" and were awarded Rs. 50 as damages in addition to the books which had been recovered by the receiver. Hafiz Mahmud Shaukat has consequently appealed, while the plaintiffs have filed cross‑objections in respect of the other books, "Wafatnama". The plaintiffs' case was that they were descendants of Ilahi Bakhsh and Raheem Bakhsh who ran a joint concern of publishers in Gujrat and to whom the author, Muhammad Buta, had assigned copyright in the book "Mirza Sahiban" on the 28th of August 1906, and in "Wafatnama" on the 28th of August 1918. In March 1946, Hafiz Mahmud Shaukat defendant had obtained the permission of one of the plaintiffs, Abdul Aziz, to publish a thousand copies of each book, but in April and May following he had produced further publica tions without authority and had thus infringed the plaintiffs' right in the copies. Defendants Nos. 2 to 7 were other heirs of the original assignees and had sold their rights to the plaintiffs. Hafiz Mahmud Shaukat, defendant No. 1, pleaded that the firm Sheikh Ilahi Bakhsh‑Raheem Bakhsh, had not acquired any copyright in the two books, that the plaintiffs themselves had not acquired legal rights in the copies and that as early as 1899 the book "Mirza Sahiban" had been published by one Karim Bakhsh of Sialkot who had purchased copyright therein. As regards the agreement of 1946 (Exh. P. 14) which the defendant had entered into with one of the plaintiffs, being based on a misapprehension of the facts, it was not binding. In any case, the copyright had expired by lapse of time. Some minor objections were also taken but they are not of any importance now. The remaining defendants admitted the plaintiff's claim. The following issues were struck:

1. Whether Sh. Ilahi Bakhsh‑Rahim Bakhsh, book‑sellers, of Gujrat, acquired copyright to print and publish "Mirza Sahiban" and "Wafatnama‑e‑Janab‑i‑Sarwar‑i‑Kainat" from Muhammad Buta, author, on the 28th of August 1946, and 8th of August 1918, respectively?

2. Whether plaintiffs have acquired the sole right to the above two publications through relinquishment or other wise, of the rights by other heirs of the original vendees?

3. Whether defendant No. 1 has infringed the copyright vesting in the plaintiffs and the plaintiffs are entitled to a decree for permanent injunction restraining defendant No. 1 from printing and publishing the books aforesaid?

4. Whether plaintiffs are entitled to any damages and to what extent

5. Whether plaintiffs are entitled to the possession of these books by the appointment of a receiver or are entitled to receive those which are alleged to have been taken over by a previous receiver?

6. Whether the values for purposes of Court‑fee and jurisdiction have been correctly fixed

7. Whether this Court has no jurisdiction to try this suit?

8. Whether a previous suit of the plaintiffs bars the present one?

9. Whether the execution of the agreement deed Exh. P. 14 dated the 26th March 1946, by defendant No. 1, was done under a misapprehension or through lack of knowledge and what is its effect?

10. Whether defendant No. 1 could print and publish the above‑mentioned books and had purchased the rights to do so from Karim Bakhsh of Mufid‑i‑am Press, Sialkot? Also whether Karim Bakhsh had a right to sell this?

11. Whether the copyright of the plaintiffs had expired and defendant No. 1 was entitled to publish the books in suit?

12. Whether plaintiffs have not impleaded all the neces sary parties and what is its effect?

13. To what relief are the plaintiffs entitled? Mr. Kaikaus, who argued the case for the appellant, emphasized only the fact that if any copyright had been acquired, it no longer subsisted. That Muhammad Buta had assigned the copyright to the plaintiffs' predecessors‑in‑interest, cannot be a matter for doubt. Exhibit P. 5 purports to be a document in the hand writing of Muhammad Buta assigning copyright in "Mirza Sahiban" and another book "Pan] Ganj" to the firm of Sh. Ilahi Bakhsh, booksellers of Gujrat, on the 28th of August 1908. Exhibit P. 4 is a similar writing dated the 8th of August 1916, assigning copyright in "Wafatnama". This happens to be attested by Sh. Karam Ilahi who appeared as P. W. 9 to prove it. These documents have been produced by Abdul Ghafur plaintiff, P. W. 10, as having been found among his father's books. The documents being more than 30 years old prove themselves. Further, there is evidence that the two books were printed by various publishers at the instance of the plaintiffs (Exhs. P. 7, P. 8 and P. 9). Next, there is a docu ment, Exh. P. 14, executed by Hafiz Mahmud Shaukat defendant on the 26th of March 1946, obtaining the permission of Sh. Abdul Aziz plaintiff, whom he acknowledges therein to be owner of the copyright along with his brothers, to publish a thousand copies of each book. In the written statement Hafiz Mahmud Shaukat explains that this agreement was executed under a misapprehension as to the plaintiffs' rights. The question, therefore, is whether the plaintiffs have any existing rights. Copyright is now governed by the Copyright Act, III of 1914, which incorporates the Imperial Copyright Act of 1911 in the First Schedule. The earlier Act that was until then in force was Act XX of 1847, by section 1 of which the copyright in every book published in the lifetime of its author "shall endure for the natural life of such author, and for the further term of seven years commencing at the time of his death . . . provided always that if the said term of seven years shall expire before the end of forty‑two years from the publication of such book, the copyright shall in that case endure for such period of forty‑two years". Under section 5 it shall be lawful for every registered‑ proprietor of copyright to assign his interest or any portion of his interest therein by making an entry in a book of registry. Section 14 of Act III of 1914, however, dispenses with registration for the purposes of this suit. Under section 5 (2), proviso, of the Imperial Copyright Act, 1911, no assignment of copyright made after the passing of the Act can operate to vest in the assignee rights beyond the expiration of twenty‑five years from the death of the author, and since the "Wafatnama" was assigned on the 8th of August 1918, the plaintiffs' right in it expired in 1943. The cross- objections of the plaintiffs which relate to this book are conse quently dismissed with costs. The other book, "Mirza Sahiban", was assigned on the 28th of August 1906, i.e., before the Act of 1914 became operative. The first publication of the book, however, took place on the 10th of November 1899 ; see Exh. D. W. 1/1, which is an extract from the catalogue of books registered in the Punjab during the quarter ending the 31st of March 1900. In respect of existing works the law is contained in section 24 of the Imperial Copyright Act which provides that if any person is immediately before the commencement of the Act entitled to copyright under the old Act, he shall from the date of the present Act be entitled to copyright as defined by the new Act and to no other right or interest and that this right shall subsist for the term for which it would have subsis ted if the new Act had been in force at the date when the book was published. But if the author has, before the commence ment of the Act, assigned the right for the whole term of the right, then "at the date when, but for the passing of this Act; the right would have expired, the substituted right conferred by this section shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before the commencement of this Act and then subsisting shall determine". In other words, since the plaintiffs had a total right of publica tion for forty‑two years from 1899, the date of first publication, their right expired in 1941 and the copyright then passed to the author or his heirs. The assignees, however, can exercise one of the two options provided by section

24. The first is that he should, within a period of between six months to one year, give a notice to the author whereupon he would be entitled to an assignment of the right for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitration. The second option is that without any such assignment, he would be entitled "to continue to re produce or perform the work in like manner as theretofore subject to the payment, if demanded by the author within three years after the date at which the right would have so expired, of such royalties to the author as, failing agreement, may be determined by arbitration." The first option cannot be exercised now and the plaintiffs should, therefore, be deemed to be exercising the second option which entitles them to continue to reproduce the work "in like manner as heretofore". The copyright, however, has passed to the author and the plaintiffs have merely a right of reproducing the work. Under section 2 of the Act copyright is deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright. It is true that Hafiz Mahmud Shaukat has infringed the copy right but this right now vests in the author's successors and does not belong to the plaintiffs. Under section 6, where copyright in any work has been infringed, it is the owner of the copyright who is entitled to a remedy by way of injunction or damages. The appeal is; therefore, accepted, but in the circumstances there will be no order as to costs. A. H. Appeal accepted.